Thursday, April 29, 2004

I evidently missed some pretty important commentary on this issue way back when I first posted it. Mea Culpa. I am particularly frustrated that I managed to overlook Eugene Volokh's commentary as he was one of the people that I emailed on the subject and searched his site daily looking for a response.

Let me try to catch up with my thoughts and then this will be my last post on the issue until something new breaks. My sense is that this will probably be killed in committee, but we'll see.

"I'm pretty sure that this is unconstitutional, under current legal doctrine. Of course, if Congress enacts this and then stares down the Supreme Court when the Court strikes it down -- for instance, if a majority of the public will be on its side -- perhaps Congress will win, and current doctrine will thus be changed. I doubt, though, that this will ever be enacted, or that the people will side with Congress rather than the Court here (setting aside whether they should)."

But I want to ask a different question: Let's say that this does indeed get enacted and validated -- for instance, assume for the sake of argument that it's implemented as a constitutional amendment. How does Congress expect even obedient judges to abide by its "revers[als]"?

Assume that the Court strikes down an abortion ban, based on some legal argument and legal precedents that the Justices would find persuasive (e.g., the right to privacy, and Casey). Congress reverses the judgment. The judgment will thus no longer be effective; the parties to the case would be free of it. But then someone else files a similar though not identical challenge to the same law.

Presumably the Justices would still find persuasive the same argument and precedents they found persuasive in the first case. True, the first decision was reversed -- but the arguments underlying it and the precedents supporting it still remain. The right of privacy, as defined by Casey, still leads the Court to think that the abortion ban is inconsistent with that precedent. Why should the Court do anything but strike the law down, at least so long as there's any conceivable distinction between this case and the preceding one [...]? After all, the Congressional veto didn't purport to wipe off the books the preexisting precedents; it only reversed one particular Supreme Court judgment. So the Congressional veto might not be terribly effective -- again, even if the Justices really do want to obey the veto process.

This doesn't really trouble me that much. Even in cases where the Supreme Court upholds the constitutionality of a given law, such repeated challenges on slightly different grounds would be possible. So the net effect of the Congressional veto would be to uphold the law against a particular challenge. That is all we can reasonably ask of a federal statute or even a constitutional amendment. Anything stronger would essentially eliminate judicial review which I agree would be undesirable.

But the other side of this is that any further challenge would have to wend its way through the court system from the beginning. This would be a sharp contrast with the current state of jurisprudence where a law so struck down is considered by all lower courts to be invalidated. Of course, those lower courts need not take the decision of Congress as precedent (as Dr. Volokh argues in the remainder of his piece) but neither would they be bound to ignore it. This would, at the very least, keep the issue alive in public debate. I think that this is what Dr. Volokh suggests when he calls the law "procedurally troublesome" but is it really any more troublesome than the current state of acrimonious debate over Roe V. Wade or the Religious Liberties Restoration Act?

I think taking the bill at face value misses the point, however. Or, at least, it misses what my point would be in offering such a bill: namely, to send courts a signal. As a Congressman, I would support such a bill, even if I knew it would never be used. Why? To tell the courts that we've had it with courts using the Constitution to enact the personal policy preferences. To tell them we've had it with courts thinking that they are some sort of super-legislature with power to set social policy on everything from economics to sexuality. And to remind them that in a democracy, it is the will of the people - not of nine unelected old men and women - that is the ultimate authority.

This is very much in the spirit of my support of the bill. Of course, "sending the courts a message" is not a particularly strong use of the legislature and can be achieved by other means just as easily. And they could just as easily ignore it. But I would look at this as a minimum positive outcome if the bill were in fact to pass.

However, in the long run, I think that the courts will only be persuaded to abandon their legislative usurpation if they perceive that such tactics do not lead to professional advancement. In other words, the Congress and the President will have to simply make "strict construction" or something similar a litmus test for all judicial appointments. And that, in turn, can only be achieved by a campaign of education, argument and political pressure by conservative thinkers who are concerned by the issue. As on so many other subjects, if we fail to make our case, we cannot complain that our opponents have won the field.

(NOTE: Several others have commented on this issue as well: Amanda Butler, Dahlia Lithwick, Stephen Hargrove, and TM Lutas. All of these are worth reading but do not really add much of substance to the debate. I include them here as a sort of albatross in penance for having missed this entire discussion while I was actively looking for it. Perhaps Google is not a sufficiently responsive search tool for investigating the blogosphere. Something to bear in mind...)

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